Keep Out! Home Owner Associations Eye Policies Barring Sex Offenders

Not-in-my-back-yard (NIMBY) describes the common and (for developers) frustrating reaction of community residents to plans for the construction of new housing, new commercial structures, or new anything in close proximity to where they live. But NIMBY doesn’t begin to describe the reaction to news that a convicted sex offender may be living nearby.

NIMBies protesting low-income housing are concerned (or say they are concerned) primarily about their property values. Residents protesting the presence of a sex offender are concerned about their safety. This is only an emerging issue today, visible in just a few states and isolated communities. But it promises to become a much larger concern. A few examples, drawn from recent press reports, highlight the trend.

Developers of a planned subdivision under construction in Lubbock, TX have promised that the new community will be molester-free. To ensure that result, they say they’re going to conduct criminal background checks on all prospective owners and reject any convicted sex offenders who apply.

Moving in a similar direction, more than 150 associations in Ohio have approved by-law amendments barring sex offenders and many more communities in Ohio and elsewhere have enacted similar measures or are considering them. There is little question that most community association residents presented with “no sex offenders allowed” initiatives will approve them. Whether the courts will uphold those restrictions is less clear.

Judicial Review

Only a few courts have considered the question thus far. The U.S. Supreme Court refused to review and let stand an Iowa law preventing sex offenders whose victims were children from living within 2000 ft. of a school or a day care center. The Iowa Civil Liberties Union argued that the restriction was an unconstitutional form of continuing punishment, making it impossible for offenders to live legally in most urban neighborhoods – an argument that civil libertarians will no doubt use to challenge similar restrictions elsewhere.

In what appears to be the only judicial review of a community association restriction to date, a New Jersey Appellate Court has considered and rejected a by-law barring sex offenders,. While this 2001 decision (Mulligan v. Panther Valley Property Owners Association) was narrowly focused and did not establish much of a precedent in New Jersey, or any precedent at all outside the state, the court’s discussion of the issue is interesting, nonetheless.

The plaintiff in the case, a resident of Panther Valley, challenged several by-law amendments approved by owners, including one barring “Tier 3” sex offenders from residing in the community. (New Jersey and most other states have adopted versions of “Meagan’s Law,” named after a child who was murdered by convicted sex offender who had been released from prison. The law classifies offenders based on the seriousness of their crimes – “Tier 3 offenders are deemed to pose the greatest risk of committing new offenses – and requires them to register with local authorities, who maintain a public data base indicating where the offenders are living.)

Pubic Policy Concerns

Mulligan complained that the restriction interfered unreasonably with her ability to sell her property, imposed an unreasonable obligation on her to identify and screen out sex offenders, and was contrary to public policy. The appeals court rejected the first two arguments out of hand, but the public policy argument gave it pause. The court agreed that sex offenders are not a constitutionally protected class, covered by anti-discrimination laws or by the reasonable accommodation requirements of the Fair Housing Act. “[But] it does not necessarily follow,” the court said, “that large segments of the state could entirely close their doors to such individuals, confining them to a narrow corridor, and thus perhaps exposing those within that remaining corridor to greater risk of harm than they might otherwise have had to confront.”

The court also acknowledged that many people choose to live within common interest ownership communities specifically because of the perceived security they offer. But that “understandable desire of individuals to protect themselves and their families from some of the ravages of modern society…should not become a vehicle to ensure that those problems remain the burden of those least able to afford a viable solution,” the court argued.

The key public policy question, the court said, is whether restrictions like the one adopted by Panther Valley, if they became widespread, would severely and unreasonably restrict the residency options of offenders who have served their time and been released from prison. The lack of data submitted by the parties on that point made it impossible, the court said, to determine “whether the result of such provisions is to make a large segment of the housing market unavailable to one category or individual and, indeed, to approach ‘the ogre of vigilantism and harassment’ the dangers of which the Supreme Court recognized, even while upholding the constitutionality of Meagan’s Law.”

Finding the record inadequate to decide the merits of the public policy question, the appeals court rejected the sex offender ban, reversing the lower court, which had upheld it. However, the court also made it clear that the public policy concerns it cited in this decision would weigh heavily in future challenges of similar community association measures.

Association Obligations

Although relatively few community associations have as yet confronted the sex offender issue, many, if not most, are likely to do so at some point, and they will find the legal terrain rocky and uncertain. Depending on state laws and legal precedents, which vary in different jurisdictions, boards will be challenged by competing legal obligations and conflicting liability concerns. For example, associations in many states have a duty to ensure the safety of community residents. That duty includes an obligation to anticipate and take steps to prevent dangers that are reasonably foreseeable. If two residents have been mugged in a dark parting lot and the board fails to install lighting, the association might be found negligent if another resident suffers a similar fate.

Under that “negligent security” theory, associations may also have an obligation to protect residents from a sex offender in their midst. But because of the lack of judicial guidance in this area, the extent of the association’s obligation and the limits of its authority, are unclear. As a result, this discussion generates far more questions than answers. Among the unanswered questions:

Do communities have the authority to bar convicted sex offenders?

Will communities face potential liability if they fail to bar offenders?

If communities do adopt sex offender bans, do they also assume an obligation to ensure that no offenders move in? And would the association be liable if an offender moves in without the board’s knowledge and harms a resident?

Is it possible an association might be sued if it does adopt a ban and sued if it does not? Unfortunately, the answer is probably yes, simply because it is “possible” for associations to be sued by almost anyone for almost anything.

Conservative Advice

So what, if anything, should associations do? Given all the uncertainties, a conservative approach is best. At this point, communities should not adopt policies banning sex offenders (although owners would no doubt approve them) but they should respond to reports that offenders have moved into the area, first by affirming the accuracy of the reports, and then by notifying owners if the reports are true.

The Community Associations Institute (CAI), which also recommends a conservative approach, suggests that boards notify community residents only if the trustees determine, based on the nature of the offense, the length of time since it occurred, and other factors, that the offender poses a “serious” threat. But making subjective judgments of that kind may expose the association unnecessarily to liability risks. A blanket policy requiring notice of any offender that comes to the board’s attention is probably best. That notice should simply state that an offender is in the community or in the area, and tell residents how to obtain more detailed information from the sex offender registry. The board should also inform the on-site security force, if the community has one, of the offender’s presence.

Additionally, and equally important, boards should remind residents that most state versions of Meagan’s Law specifically prohibit “threats, intimidation, or harassment” of offenders, and caution that any actions of that kind could result in a law suit and a possible financial judgment against the association.

Given the legal complexities and risks on all sides of this issue, boards should consult with their attorney on the substance and form of these notices before posting them, and they should definitely obtain legal advice before adopting any policies barring or otherwise restricting the presence of sex offenders in their communities. No current laws, of which I am aware, prohibit community associations from barring sex offenders. But communities that adopt those policies should be prepared for a legal challenge that could prove very costly to defend.